California Mediation Privilege: What It Covers, What It Doesn't, and Why It Matters for Your Divorce

If you and your spouse mediate your divorce in California, what you say during the mediation, and most papers written for it, generally cannot be used as evidence or demanded in later court cases. This protection is strong but not absolute. A signed settlement agreement, a joint waiver, and your required financial disclosures follow different rules.

Most people facing a divorce mediation reach this question at a tender point. You may want to speak openly about money, the house or the children. You may also worry about what happens if talks break down and one of those honest moments ends up in front of a judge. Some readers are one spouse quietly checking the rules before suggesting mediation. Others are partway through sessions and want to know where the edges of the protection are.

This article walks through how California's mediation confidentiality rules work for couples using private divorce mediation, whether in San Diego County or online from anywhere in California. It covers what is protected, who is covered, how a mediated agreement can still reach the court, and how all of this differs from the court's own custody mediation.

What California's Mediation Privilege Means Under the Evidence Code

Evidence Code section 1119 is the core rule. A privilege, in plain terms, is a legal rule that keeps certain communications out of court and out of discovery, which is the formal process each side uses before trial to demand information and documents from the other. California's statutes mostly call this protection "confidentiality," but people often call it the mediation privilege.

Section 1119 says that, except as the Evidence Code's mediation chapter otherwise provides:

"No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

The same section gives the same protection to writings prepared for the purpose of, in the course of, or under a mediation or a mediation consultation. It also says that "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential." So the rule reaches spoken words, admissions, written materials prepared for the mediation, and the back-and-forth of negotiation.

Two protections are packed into that rule, and they work at different stages. "Not admissible" means the material cannot be used as evidence at a hearing or trial. "Not subject to discovery" means the other side cannot force it to be handed over in the earlier fact-gathering phase. Together they keep mediation talk out of both the run-up to trial and the trial itself.

The definitions behind all this are in Evidence Code section 1115:

• Mediation is "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement."
• Mediator is "a neutral person who conducts a mediation," and includes anyone the mediator designates to assist in the mediation or to communicate with the participants in preparation for it.
• Mediation consultation is "a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator."

Notice what the definition of a mediator leaves out. A mediator does not represent either spouse, argue for either one, or decide anything. The mediator helps you and your spouse talk so that you can reach terms you both accept. That neutral role is part of why the law protects the conversation.

The protection also lasts. Under Evidence Code section 1126, anything that was confidential under the chapter before a mediation ends stays confidential to the same extent after it ends.

Who the Privilege Covers and When It Begins

Coverage turns on the word "participants," and on timing. The protection in section 1119 reaches communications between participants in the course of a mediation. In a divorce mediation, that typically means you, your spouse, the mediator, and anyone else who takes part, such as an attorney either of you brings.

The privilege can attach before the first formal session. Because section 1119 also covers a "mediation consultation," communications with a mediator made to start, consider or restart a mediation, or to retain the mediator, fall within the statute's reach. Whether a particular early conversation qualifies depends on its facts and purpose, so this article does not treat any specific consultation, including one with this practice, as protected.

The privilege belongs to everyone in the room rather than to one person alone. Evidence Code section 1122 explains how it can be set aside: a communication or writing made for or in the course of a mediation loses its protection under the chapter if "all persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure." Section 1122 lists other conditions too, including one for documents prepared by fewer than all the participants that disclose nothing said or done in the mediation, and one tied to an attorney's compliance with section 1129. If the mediator agrees to disclosure, that agreement also binds anyone the mediator designated to assist.

An oral agreement only counts under Evidence Code section 1118 if it meets all of that section's conditions:

1. It is recorded by a court reporter or a reliable means of audio recording.
2. Its terms are recited on the record in the presence of the parties and the mediator, and the parties say on the record that they agree.
3. The parties expressly state on the record that the agreement is enforceable or binding, or words to that effect.
4. The recording is reduced to writing, and the parties sign it within 72 hours after it is recorded.

A casual "sure, you can share that" across the table does not meet this test.

When a Written Settlement Agreement Can Be Disclosed or Enforced

Evidence Code section 1123 matters most to divorcing couples, because it explains how the result of your mediation can leave the room. A written settlement agreement prepared in the course of, or under, a mediation is not made inadmissible or protected from disclosure by the chapter if the settling parties sign it and any of these conditions is met:

• (a) the agreement says it is admissible or subject to disclosure, or words to that effect;
• (b) the agreement says it is enforceable or binding, or words to that effect;
• (c) all parties to the agreement expressly agree in writing, or orally under section 1118, to its disclosure; or
• (d) the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

It helps to see sections 1119 and 1123 as two halves of one design. Section 1119 protects the process: what was said, offered and drafted along the way. Section 1123 gives the finished, signed written outcome a path into the open.

That path is how a mediated divorce settlement can be presented to the court. A marital settlement agreement that states it is enforceable or binding can be offered to the court under section 1123(b). Signing it does not turn it into a court order by itself; the agreement still has to go to the court as part of the divorce case, and some terms, such as child support, are subject to the court's review. The page on how a divorce mediation agreement works walks through that sequence.

The practical point is simple. A mediated settlement agreement is not always private and not always inadmissible. Its wording, and your signatures, can change its status.

Exceptions and Limits: What the Privilege Does Not Protect

The privilege is strong, but it is not absolute. Several sections of the chapter mark its edges.

Proceedings the chapter does not cover. Under Evidence Code section 1117(b), the mediation confidentiality chapter does not apply to a proceeding under Part 1 of Division 5 of the Family Code (commencing with section 1800), to the court's child custody mediation under Chapter 11 of Part 2 of Division 8 of the Family Code (commencing with section 3160), or to a settlement conference under Rule 3.1380 of the California Rules of Court. The court's custody mediation has its own confidentiality rule, Family Code section 3177, discussed below.

Evidence that existed anyway. Evidence Code section 1120(a) says evidence that is otherwise admissible or discoverable outside a mediation does not become protected "solely by reason of its introduction or use in a mediation." A bank statement or a pay stub does not gain protection just because it was shown at a session. Section 1120(b) also lists matters the chapter does not limit, including the admissibility of an agreement to mediate, the fact that a mediator served or was contacted about serving, and the declarations of disclosure required by Family Code sections 2104 and 2105.

The mediator's reports and testimony. Evidence Code section 1121 says neither the mediator nor anyone else may submit to a court, and a court may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator about the mediation, other than a report mandated by court rule or other law that states only whether an agreement was reached, unless all parties expressly agree otherwise in writing or orally under section 1118. Separately, Evidence Code section 703.5 says a mediator is not competent to testify in a later civil proceeding about statements, conduct, decisions or rulings in the mediation, except as to statements or conduct that could give rise to civil or criminal contempt, constitute a crime, be the subject of a State Bar or Commission on Judicial Performance investigation, or give rise to certain judicial disqualification proceedings. Section 703.5 does not apply to the court's custody mediation under Family Code section 3160 and following.

Waiver and signed agreements. As covered above, section 1122 allows disclosure when all participants expressly agree, and section 1123, including its subdivision (d) on fraud, duress or illegality, opens a path for signed written agreements.

Mentioning mediation at trial. Under Evidence Code section 1128, any reference to a mediation during a later trial is an irregularity in the trial proceedings for purposes of Code of Civil Procedure section 657, and a reference during another later noncriminal proceeding can be grounds for a new or further hearing if it materially affected a party's substantial rights.

California's Supreme Court has read these statutes broadly. See Cassel v. Superior Court (2011) 51 Cal.4th 113, concerning attorney-client communications made in the context of mediation, and Foxgate Homeowners' Ass'n v. Bramalea California, Inc. (2001) 26 Cal.4th 1, on courts not creating exceptions the statute does not contain.

How the Privilege Works in a California Divorce Mediation

For couples in San Diego County, and for couples anywhere in California who mediate online, the effect is fairly concrete. Under section 1119, what you and your spouse say, offer and write for your sessions generally cannot be used in court or demanded in discovery if the mediation does not end in an agreement. That room to speak openly is one reason couples work through support, property and parenting questions in mediation. The pages on property division mediation and spousal support mediation show how those issues are worked through.

Confidentiality does not remove the duty of financial disclosure. Under Family Code section 2104(f), each spouse serves a preliminary declaration of disclosure with the petition or response, or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order; when the petitioner served the summons and petition by publication or posting under a court order and the respondent files a response before a default judgment is entered, the petitioner has 30 days from that response.

Under Family Code section 2105(a), except by court order for good cause, each spouse serves a final declaration of disclosure and a current income and expense declaration before or at the time the parties enter into an agreement resolving property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date, unless the parties mutually waive the final declaration. That mutual waiver must be executed under penalty of perjury in open court or by separate stipulation, and must include the representations section 2105(d) lists, including that both parties have complied with section 2104 and exchanged their preliminary declarations. Mediating does not let spouses skip, shorten or informally replace any of this. And as noted, section 1120(b)(4) keeps those declarations admissible even if they were prepared in or for the mediation.

When the written agreement is signed and states that it is enforceable or binding, section 1123(b) is what allows it to be presented to the court in the divorce case.

Private mediation is not the court's custody mediation

A second kind of family mediation runs on entirely separate rules. Under Family Code section 3160, each superior court makes a mediator available. Under Family Code section 3170(a), when it appears from a petition or other pleading to obtain or modify a custody or visitation order that custody, visitation or both are contested, the court must set the contested issues for mediation. Under section 3170(b), domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council.

In San Diego County, where family law cases are heard by the Superior Court of California, County of San Diego, that court mediation is child custody recommending counseling with Family Court Services. Under Family Code section 3183(a), except as provided in section 3188, the court's mediator may, consistent with local court rules, submit a recommendation about custody or visitation to the court, if it is first given in writing to the parties and their attorneys before the hearing. A mediator with that authority is called a child custody recommending counselor. Family Court Services explains that if no agreement is reached, the counselor makes a recommendation and the court hearing goes forward. The judge decides.

That court process is held in private and is confidential under Family Code section 3177, not under Evidence Code section 1119 or 1123. Private divorce mediation, including mediation with Simple Divorce Mediation, is a separate process and is not connected to the court or Family Court Services. The page on child custody mediation explains the court process in more depth.

Mediation Privilege and Attorney Conduct: What Section 1129 Requires

Evidence Code section 1129 places a specific duty on attorneys. Except in a class or representative action, an attorney representing a client in a mediation or mediation consultation must, as soon as reasonably possible before the client agrees to participate, give the client a printed disclosure describing the confidentiality restrictions in section 1119 and obtain the client's signed acknowledgment that they have read and understand them. An attorney retained after the client has already agreed to participate must do the same as soon as reasonably possible after being retained.

The disclosure has form requirements under section 1129(c): it must be printed in the client's preferred language in at least 12-point font, on a single page not attached to any other document, and include the names of the attorney and client, signed and dated by both. The statute offers model wording, which begins: "To promote communication in mediation, California law generally makes mediation a confidential process."

This duty sits on the attorney. Section 1129 is written as an obligation of the lawyer toward the client rather than as a step in the definition of what section 1119 protects, and section 1122(a)(3) addresses how compliance materials may be used in attorney disciplinary proceedings.

Either spouse may have a lawyer of their own during mediation. Having one is optional, and neither spouse is barred from it. The roles stay distinct: an attorney advises a client, while the mediator stays neutral, helps both spouses communicate, and does not represent, advocate for or decide anything for either one. Some couples find that knowing these boundaries makes it easier to speak plainly in the room. Where there has been domestic violence, coercion or a protective order, safety comes first, and the page on when mediation may not fit covers that.

If You'd Like to Talk Through How Confidentiality Applies to You

Confidentiality questions rarely stay abstract. They tie into what you and your spouse plan to put in writing, which disclosures are coming due, and whether a custody question might also land in the court's own process. A consultation is a place to learn how mediation is typically structured, how a written agreement is typically worded and presented to the court, and where the confidentiality rules stop. Whether you are in San Diego County or elsewhere in California and mediating online, the practice can explain how the process works before either of you commits to it.

To talk with the practice about mediation confidentiality, call Simple Divorce Mediation at 858-330-1378 to arrange a joint mediation consultation whenever you are ready.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-08.